If you’re reading this on Wednesday January 18, 2012 and you decide to head over to Wikipedia for a quick read up on the history of Gilligan’s Island you’ll be greeted with a black screen of protest. Or maybe you want to spend some quality time on Reddit or BoingBoing… nope, they’re black. Oh well, at least there’s always LOLcats at ICanHasCheezburgers…. wait… NO! In this world gone mad not even the Thai Food Blog is safe!!!!!

All these sites and others have pledged to conduct a one day internet shutdown as a symbolic protest over two bills that are making their way through the United States Congress. Apparently with complete disregard for the fact once you go black, you don’t go back.

As a way of joining in, all of our links within this article will go to the “dark sites” participating in the protest. After all, who needs to check facts during an internet protest. Just take our word that everything you read here is the gospel truth…

So what the hell is SOPA?

It is a winner take all fight to the death between Media Giants (MPAA, RIAA) vs Tech Giants (Google, Facebook). These bills, SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) were designed to put a check to online piracy – a move that is very popular with organizations like the MPAA and RIAA who see people enjoying and sharing entertainment freely as the first sign of the apocalypse. But the bill, in its current state, grants to the government the power to block websites that not only host, but link to sites that illegally use copyright infringed work.

How the hell does it work?

Because it’s difficult for U.S. companies to take legal action against “rogue” foreign sites (like The Pirate Bay) SOPA’s aim is to cut off pirates ability to do business by requiring U.S. search engines, video hosts, advertising networks and other providers to not allow them to use their services. That would mean sites like Google couldn’t show flagged sites in their search results, and sites like PayPal couldn’t process payments for them. It would also mean sites like YouTube would go dark because user uploaded material that may violate copyright law.

These tactics where used to some degree to try and kill Wikileaks when Paypal, Visa, MasterCard, Amazon and others blocked them from using their services. That in turn lead to the group Anonymous to launch Operation Payback that snowballed into a wave of hacking attacks. The big deference being those where voluntary actions by service providers and they where not under any legal obligation to do so.

Why the hell should I care?

The bills are controversial because they would change the digital landscape if they became law and murder millions of kittens. It could mean the shut down of many user generated content sites and force them to enact dictatorial policing actions.

Google and Facebook, are known for never selling their user information to third parties (ahem!), are weighing in on this obtrusive action of the government calling it censorship. Yes, there is no shortage of irony:

But I digress….

You may be asking yourself, isn’t copyright infringement already illegal? Why yes it is. The way copyright enforcement currently works now is if a copyright holder sees an act of infringement, let’s say on Youtube, they can issue a DMCA (Digital Millennium Copyright Act) Warning. The other side can protest this warning and use many of the legal copyright defenses (like fair use or parody). If they can’t come to terms, the matter can be taken to the courts. But this is only effective in sites based in the United States.

SOPA steps up the action by giving the government the power to shut down access to sites that infringe on copyright material. And the shut down is being done at the point of accusation, which means just the whiff of infringement could lead to a shut down.

SOPA’s critics say the bill’s backers just don’t understand the interwebs’ series of tubes, and therefore don’t appreciate the implications of the legislation.

When the hell does this go into effect?

In its current form most likely never. It was expected to fly through committee then on to approval in the House. But now after the interwebs went batshit, it’s being extensively “reworked.”

The White House said the original legislation’s technical provisions “suggests that they pose a real risk to cybersecurity,” and that it wouldn’t support legislation that mandates manipulating the Internet’s technical architecture.

House Majority Leader Eric Cantor has said SOPA won’t come up for a committee vote as-is.

They plan to resume revision of the bill in February and it likely is to last for months. That means the bill could change a lot from day to day. One thing is for sure, these giants will continue to fight it out for years to come, crushing us all in their wake.

Perhaps this time the Tech Firms have a valid points, but make no mistake neither side really cares about your freedoms. Especially when they conflict with profits.

Reddit’s User Agreement:

“you agree that by posting messages, uploading files, inputting data, or engaging in any other form of communication with or through the Website, you grant us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, adapt, translate, enhance, transmit, distribute, publicly perform, display, or sublicense any such communication in any medium (now in existence or hereinafter developed) and for any purpose, including commercial purposes, and to authorize others to do so.”

So, who really owns the rights if you crowdsource your story? The Hollywood Reporter looks into it:

Arguably, this means that Reddit also has the right to take Erwin’s story and license it to another studio — say, Universal or 20th Century Fox.

In addition, although Erwin undoubtedly did much of the hard work in crafting the story himself, during the genesis of “Rome, Sweet Rome,” some of Reddit’s other users made suggestions to his work that may ultimately shape the final story.

So what exactly did Warner Bros. buy here?

Jerry Birenz, who is listed as the copyright agent for Reddit, says that this raises an “interesting issue” and that by a strict reading of the user agreement, multiple parties might be able to make a claim to a license if they chose to develop Erwin’s story.

Birenz wouldn’t speak further without getting permission from his client, and executives for Reddit didn’t respond to requests for comment. (It’s worth pointing out that Reddit is owned by a major publisher — Condé Nast — which has shown interest in more robust licensing activity)

Other lawyers also agree there may be room for another studio to ambush Warners’ attempt at a film adaptation of a story posted on Reddit. This problem comes up, they say, because many social community sites wants to encourage active sharing and thus maintain permissive licensing arrangements.

“These assignable, nonexclusive licenses are everywhere, and problematic,” says Denise Howell, an IP lawyer in California. “Many professional photographers are eschewing photo sharing sites because they need to be able to grant exclusive licenses to their clients.”

Hollywood Reporter | Read Full Article

The interwebs should not be a replacement for proper legal advice. We created this article with the help of Wikipedia and Nina Paley’s “Mimi and Eunice” not to replace the need for an attorney, but to give you basic understanding of copyright and its limitations and exceptions. Also check out other Filmmaking Terms Explained in this ongoing series.

Threshold of originality

The threshold of originality is a concept in copyright law that is used to assess whether or not a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not. In this context, “originality” refers to “coming from someone as the originator/author” (insofar as it somehow reflects the author’s personality), rather than “never having occurred or existed before” (which would amount to the protection of something new, as in patent protection).

In United States copyright law, this principle was invoked in the 1991 ruling of the United States Supreme Court in Feist Publications v. Rural Telephone Service. The court opinion stated that copyright protection could only be granted to “works of authorship” meeting this minimum threshold of originality. As such, mere labor, if not original, was not copyrightable. This legal interpretation was derived from the Copyright Clause of the United States Constitution, which grants Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This requirement sets a very low bar for originality under U.S. law. For example, the expression of some obvious methods of compilation and computation, such as the Yellow Pages or blank forms, cannot receive a copyright (demonstrated in Morrissey v. Procter & Gamble). However, if such works contain some copyrightable elements — e.g. a paragraph describing the Yellow Pages, or random designs on the blank forms — then those elements can receive copyright protection.

Sweat of the brow

“Sweat of the brow” is an intellectual property law doctrine, chiefly related to copyright law. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or “originality” is not required.

Under a “sweat of the brow” doctrine, the creator of a copyrighted work, even if it is completely unoriginal, is entitled to have his effort and expense protected, and no one else may use such a work without permission, but must instead recreate the work by independent research or effort. The classic example is a telephone directory. In a “sweat of the brow” jurisdiction, such a directory may not be copied, but instead a competitor must independently collect the information to issue a competing directory. The same rule generally applies to databases and lists of facts.

Civil law jurisdictions have traditionally used the similar but not identical concept of droit d’auteur. On a European level, some Guidelines of European Parliament tend to harmonize the protection of Intellectual Property throughout Europe and the doctrine gains more influence. A good example is the Databases Directive 96/9/EC – in this Directive, the member states of the EU are obliged to confer protection on non-original databases, that is on those that embody no creativity, but are a consequence of substantial investment (financial, labour etc.).

Scènes à faire

Scène à faire (French for “scene to be made” or “scene that must be done”; plural: scènes à faire) is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.

For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a femme fatale, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects. These elements are not protected by copyright, though specific sequences and compositions of them can be.

As another example, in programming, it is often customary to list variables at the beginning of the source code of a program. In some programming languages, it is required to also declare the type of variable at the same time. Depending on the function of a program, certain types of variables are to be expected. If a program deals with files, variable types that deal with files are often listed and declared. As a result, variable declarations are generally not considered protected elements of a program.

After the release of the film Fort Apache, The Bronx, author Thomas Walker filed a lawsuit against one of the production companies, Time-Life Television Films (legal owner of the script), claiming that the producers infringed on his book Fort Apache (New York: Crowell, 1976. ISBN 0690010478). Among other things, Walker, the plaintiff, argued that: “both the book and the film begin with the murder of a black and a white policeman with a handgun at close range; both depict cockfights, drunks, stripped cars, prostitutes and rats; both feature as central characters third- or fourth-generation Irish policemen who live in Queens and frequently drink; both show disgruntled, demoralized police officers and unsuccessful foot chases of fleeing criminals.” But the United States Court of Appeals for the Second Circuit ruled that these are stereo-typical ideas, and that the United States copyright law does not protect concepts or ideas. The court ruling stated: “the book Fort Apache and the film Fort Apache: The Bronx were not substantially similar beyond [the] level of generalized or otherwise nonprotectible ideas, and thus [the] latter did not infringe copyright of [the] former.”

Another significant case in United States law was Ets-Hokin v. Skyy Spirits (2003), in which scenes à faire was upheld as an affirmative defense by the United States Court of Appeals for the Ninth Circuit. The case involved a commercial photographer, Joshua Ets-Hokin, who sued SKYY vodka when another photographer created advertisements with a substantially similar appearance to work he had done for them in the past. It was established that the similarity between his work and the later works of the photographer was largely mandated by the limited range of expression possible; within the constraints of a photo shoot for a commercial product there are only so many ways one may photograph a vodka bottle. In light of this, to establish copyright infringement, the two photos would have been required to be virtually identical. The originality of the later work was established by such minor differences as different shadows and angles.

Idea-expression divide

The idea-expression divide or idea-expression dichotomy limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.

The case of Baker v. Selden was the first U.S. Supreme Court case to fully explain this doctrine, holding that exclusive rights to the “useful art” (in this case bookkeeping) described in a book was only available by patent; the description itself was protectable by copyright.

In Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985), the Supreme Court stated that “copyright’s idea/expression dichotomy ’strike a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.’” (internal citation omitted).

Additionally, in Mazer v. Stein, 347 U.S. 201, 217 (1954), the Supreme Court stated “Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself.”

Some of the criticism directed at “intellectual property” is based on the confusion between patents, which may confer proprietary rights in relation to general ideas and concepts per se when construed as methods, and copyrights, which cannot confer such rights.

An adventure novel provides an illustration of the concept. Copyright may subsist in the work as a whole, in the particular story or characters involved, or in any artwork contained in the book, but generally not in the idea or genre of the story. Copyright therefore may not subsist in the idea of a man venturing out on a quest, but may subsist in a particular story which follows that pattern. Similarly, if the methods or processes described in a work are patentable, they may be the subject of various patent claims, which may or may not be broad enough to cover other methods or processes based on the same idea. Arthur C. Clarke, for example, sufficiently described the concept of a communications satellite (a geostationary satellite used as a telecommunications relay) in a 1945 paper that it was not considered patentable in 1954 when it was developed (independently) at Bell Labs.

In the English decision of Donoghue v. Allied Newspapers Limited (1938) Ch 106, the court illustrated the concept by stating that “the person who has clothed the idea in form, whether by means of a picture, a play or a book” owns the copyright. In the Australian decision of Victoria Park Racing and Recreation Grounds Company Limited v. Taylor (1937) 58 CLR 479 at 498, Latham CJ used the analogy of reporting a person’s fall from a bus: the first person to do so could not use the law of copyright to stop other people from announcing this fact.

Some courts have recognized that there are particular ideas that can be expressed intelligibly only in one or a limited number of ways. Therefore even the expression in these circumstances is unprotected, or extremely limited to verbatim copying only. In the United States this is known as the merger doctrine, because the expression is considered to be inextricably merged with the idea. United States courts are divided on whether merger constitutes a defense to infringement or prevents copyrightability in the first place^{, but it is often pleaded as an affirmative defense to copyright infringement.}

Fair use

Fair use, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test. The term fair use originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Fair dealing

Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations.

Fair dealing is an enumerated set of possible defences against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories. In practice, common law courts might rule that actions with a commercial character, which might be naïvely assumed to fall into one of these categories, were in fact infringements of copyright as fair dealing is not as flexible a concept as the American concept of fair use.

United States

The parallel concept in United States copyright law is fair use. The term “fair dealing” has a different meaning in the U.S. It is a duty of full disclosure imposed upon corporate officers, fiduciaries, and parties to contracts. In the reported cases, it usually arises in the context of the “implied covenant of good faith and fair dealing,” which underlies the tort cause of action for insurance bad faith. See, e.g., Davis v. Blue Cross of Northern California, 25 Cal. 3d 418 (1979) (health insurer breached covenant by failing to meaningfully advise insureds of arbitration clause).

Berne three-step test

The Berne three-step test is a clause that is included in several international treaties on intellectual property. It imposes on signatories to the treaties constraints on the possible limitations and exceptions to exclusive rights under national copyright laws.

It was first applied to the exclusive right of reproduction by Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works in 1967. Since then, it has been transplanted and extended into the TRIPs Agreement, the WIPO Copyright Treaty, the EU Copyright Directive and the WIPO Performances and Phonograms Treaty.

The test is included in Article 13 of TRIPs. It reads,

Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

(The three steps are in bold for emphasis.)

The technical legal reasoning which has been applied to suggest how this wording should be interpreted is arcane (see the references below). To date, only one case (before a WTO dispute settlement panel, involving U.S. copyright exemptions allowing restaurants, bars and shops to play radio and TV broadcasts without paying licensing fees, passed in 1998 as a rider to the Sonny Bono Copyright Term Extension Act) has actually required an interpretation of the test.

The three-step test may prove to be extremely important if any nations attempt to reduce the scope of copyright law, because unless the WTO decides that their modifications comply with the test, such states are likely to face trade sanctions. Exceptions to copyright protection are required to be clearly defined and narrow in scope and reach. For instance, the three-step test was invoked as a justification for refusing certain exceptions to copyright wished for by members of the French parliament during the examination of the controversial DADVSI copyright bill.

TRIPs Article 30, covering limitations and exemptions to patent law, is also derived from the three-step test.

The ‘three-step’ test can also be found in Article 10 of the WIPO Copyright Treaty, Article 6(3) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, Article 6(3) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases and Article 5(5) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

Right to quote

Right to quote is a legal concept in continental Europe, which some people consider similar to fair use. It allows for quoting excerpts of copyrighted works, as long as the cited paragraphs are within a reasonable limit (varying from country to country), clearly marked as quotations and fully referenced, and if the resulting new work is not just a collection of quotations, but constitutes a fully original work in itself. In some countries the intended use of the work (educational, scientific, parodist, etc.) may also be a factor determining the scope of this right.

Public domain

Works are in the public domain if they are not covered by intellectual property rights at all, if the intellectual property rights have expired, and/or if the intellectual property rights are forfeited. Examples include the English language, the formulae of Newtonian physics, the works of Shakespeare and Beethoven, and the patents on powered flight.

In a general context public domain may refer to ideas, information, and works that are “publicly available”, but in the context of intellectual property law, which includes copyright, patents, and trademarks, public domain refers to works, ideas, and information which are intangible to private ownership and/or which are available for use by members of the public.

Works not covered by copyright law

The underlying idea that is expressed or manifested in the creation of a work generally cannot be the subject of copyright law (see idea-expression divide). Mathematical formulae will therefore generally form part of the public domain, to the extent that their expression in the form of software is not covered by copyright; however, algorithms can be the subject of a software patent in some jurisdictions.

Works created before the existence of copyright and patent laws also form part of the public domain. For example, the Bible and the inventions of Archimedes are in the public domain, but copyright may exist in translations or new formulations of these works.

Expiration of copyright

The expiration of a copyright is more complex than that of a patent. Historically the United States has specified terms of a number of years following creation or publication; this number has been increased several times. Most other countries specify terms of a number of years following the death of the last surviving creator; this number varies from one country to another (50 years and 70 years are the most common), and has also been increased in many of them. See List of countries’ copyright length. Legal traditions differ on whether a work in the public domain can have its copyright restored. Term extensions by the U.S. and Australia generally have not removed works from the public domain, but rather delayed the addition of works to it. By contrast, a European Union directive harmonizing the term of copyright protection was applied retroactively, restoring and extending the terms of copyright on material previously in the public domain.

Government work

Works of the United States Government and various other governments are excluded from copyright law and may therefore be considered to be in the public domain in their respective countries. In the United States, when copyrighted material is enacted into the law, it enters the public domain. Thus, the building codes, when enacted, are in the public domain. They may also be in the public domain in other countries as well. “It is axiomatic that material in the public domain is not protected by copyright, even when incorporated into a copyrighted work.”

Definition

The definition of public domain is not uniform and may not only include completed works, but also permitted uses of works still covered by intellectual property rights, such as for example the right to excerpt short quotations in a review. This definition divides areas of private property from areas of the public domain. For example, Mozart’s music is public property, and Britney Spears‘ music is private property.

Orphan works

An orphan work is a copyrighted work for which the copyright owner cannot be contacted.

Types of orphan works

In some cases the name of the creator or copyright owner of an orphan work may be known but other than the name no information can be established. Conversely, the work is not orphaned when copyright owners protect their identity but provides means to contact them. Reasons for a work to be orphan include that the copyright owner is unaware of their ownership or that the copyright owner has died or gone out of business (if a company) and it is not possible to establish to whom ownership of the copyright has passed.

Examples of orphan works

Despite a recognition that a vast number of orphan works exist in the collections of libraries, archives and museums precise figures are not readily available. In April 2009 a study estimated there to be around 25 million orphan works in the collections of public sector organisations in the UK. Examples of orphan works include photographs which do not note the photographer, such as photos from scientific expeditions and historical images, old folk music recordings, little known novels and other literature.

Impact of orphan work

Orphan works are not available for use by filmmakers, archivists, writers, musicians, and broadcasters. Because the copyright owner can not be identified and located, historical and cultural records such as period film footage, photographs, and sound recordings can not be incorporated in contemporary works. Public libraries, educational institutions and museums, who digitise old manuscripts, books, sound recordings and film, may choose to not digitise orphan works, or make orphan works available to the public, for fear that a re-appearing copyright owner may sue them for damages.

Causes

According to Neil Netanel the increase in orphan works is the result of two factors: (1) that copyright terms have been lengthened, and (2) that copyright is automatically conferred without registration or renewal. Currently only a fraction of old copyrighted works is available to the public. Netanel argues that copyright owners have “no incentive to maintain a work in circulation” or otherwise make their out-of-print content available unless they can hope to earn more money doing so than by producing new works or engaging in more lucrative activities.

Since American Graffiti, the modern film musical has been reinvented as a greatest hits collection of popular or cutting-edge genre music. But if a filmmaker wishes to use recordings of popular songs, she must enter the byzantine world of music licensing. The filmmaker takes on the role of a record album producer, assembling the right mix of sounds and artists—collected from a variety of songwriters, singers, music publishers, and record labels. Each party has an interest in the copyright of the songs to be used in the film, and each must be represented in the licensing process.

Two Different Copyright Holders

The recording of a popular song is protected by two separate copyrights. First, the composition (the lyrics and the written music) is protected by a copyright held by the composers. The composers may consist of a song-writing team, such as Lennon and McCartney; a composer and a lyricist, such as Rodgers and Hammerstein; or a single person. Regardless of the number of composers, they jointly hold a single copyright. In most cases, the composers have assigned these rights to the music publisher, so the publisher is the party with which the filmmaker must negotiate to obtain rights to use the music and lyrics in the film.

Second, the sound recording of the song is protected through a copyright held by the producer of the song or the record company that manufactured and distributed the song. The performers on the recording are not protected by copyright but look to employment contracts with the record company for participation in the song’s revenue.

If the filmmaker wishes to use a particular recording, then both the composers (or the music publisher to which the composers have assigned their rights) and the producer or record company must license it. For instance, Motown Records owns the recording of “Trouble Man,” while singer and composer Marvin Gaye owns the composition rights. If the filmmaker wishes to play the Motown version of the song, then both the representatives of Marvin Gaye as composer and Motown as owner of the sound recording will need to grant permission to use the work. In addition, because of a long, strained history, there are a variety of different rights that must be identified and licensed separately. Failure to include any of these discrete rights in the contract can create substantial problems when distributing the film, or it can result in the entire film being unmarketable in some or all markets.

Every film distributor today intends for each film to be shown theatrically and via premium cable, broadcast television, standard cable television, nonnetwork broadcast television, home recording machines (DVD, Blu-ray, etc.), and online downloads and streaming performances. To exploit these markets worldwide, the distributor must acquire a number of different music rights. Most distributors expect that the acquisition of all these rights has been accomplished or arranged by the filmmaker.

Rights from the Music Publisher: Public Performance, Reproduction, and Synchronization

To properly use a piece of music, the filmmaker needs to acquire three specific rights from the composer or music publisher. Typically, all three rights are acquired in the same license agreement. Together, they give the film company the right to make its own recording of the song for use in the film. To use a prerecorded song, the film company needs these rights from the composer or music publisher plus rights to reproduce the prerecorded song from the record label.

Public Performance

In music, the public performance right protects the copyright holder for the composition from any unauthorized public performance of his work. The performance of the songs in the movie theater, on television, or streaming over the Internet constitutes public performances, so the filmmaker must acquire this right before the movie can be played in such venues. Historically, this right was reserved only for the composers in the song, not the record company in the sound recording. Recently, however, digital sound recordings were granted a limited public performance right.

For the theatrical distribution of motion pictures, the public performance right must be obtained directly from the copyright holder, typically the music publisher. For other public performances of music, the rights may also be obtained through a license with a performing rights society, such as ASCAP, BMI, or SESAC.

Reproduction of the Composition

Because the film will be licensed to sell copies on DVD or other physical media or via digital downloads, the music and score also need to be licensed to allow the film distributor to make multiple copies of the composition. The license to reproduce the song is also known as the mechanical license.

Synchronization

In addition to the statute-based rights of public performance and reproduction, copyright also recognizes a distinct right to associate a song with a particular audiovisual image. Whether a song is used in films, television, video games, or other multimedia works, the right to synchronize the pictures with the sound is a distinct legal right that must be separately protected. The synchronization or synch rights are also provided by the publisher (or the composer, if there is no publisher).

Rights from the Record Label: Master Use License

The right of reproduction protects not only the composers but also the recording companies from unauthorized creation of copies of a sound recording in any medium. Most consumers view this as the rule against taping radio broadcasts or ripping CDs, but in a commercial context, it applies to duplicating songs and sound recordings in each print of a film and, more importantly, in every copy of the DVD.

To use a particular prerecorded version of a song, the film company will need to acquire the rights to that particular performance from the record label that owns the copyright in the master recording. If the filmmaker contemplates a soundtrack album, then the reproduction right must extend to use in that format as well.

* Jon Garon is admitted in New Hampshire, California and Minnesota.

Adapted from Independent Filmmaking, The Law & Business Guide for Financing, Shooting & Distributing Independent & Digital Films, A Capella Books (2d Ed. 2009) (reprinted with permission). Jon Garon is professor of law, Hamline University School of Law; of counsel, Gallagher, Callahan & Gartrell.

VIA: TED.com

By Jon M. Garon
Gallagher, Callahan & Gartrell, PC

Although film is an expressive art form, it is also an increasingly international and highly commercial business. As a result, filmmakers should be very selective regarding choices to use a third party’s property—copyrighted works, trademarks, readily identified individual names or corporate names—without express permission. Permission is not always difficult to come by. Without the express permission, the errors and omissions insurance may be drafted to exclude any liability for the use of such content, and the lack of coverage may discourage distributors or exhibitors from buying or showing the work.

The issues regarding clearance become more difficult in the context of international film distribution. Different countries have very different approaches to censorship and to the kinds of content deemed inappropriate. In some cases, this relates to third-party ownership rights, and in other cases it relates to the action being filmed. In the United States, filmmakers risk changes to their MPAA ratings for depictions of smoking. In countries where alcohol is banned, the exhibition of drinking may be discouraged or banned as well. In some cultures, religious images may not be photographed. For example, images of the prophet Muhammad are banned from exhibition in some countries. And depictions of nudity are treated very differently from country to country and from medium to medium.

1. Script Clearance

When a shooting script is prepared, it should be sent for clearance review, to ensure that the filmmaker has acquired all the rights necessary to film it. The resulting script clearance identifies all the script elements that may give rise to third-party ownership claims. It will identify the potential legal issues, and will instruct the film company to consult with the production attorney to resolve those issues. Many of the topics of the report are discussed elsewhere throughout this book: acquisition of literary rights, purchase of life-story rights for fictional works and documentaries, acquisition of music, and location agreements. The report should be reviewed carefully by the film company and its lawyer to identify the rights that must be acquired and the situations that can be avoided.

Script clearance should be undertaken well before principal photography begins. This provides the production company with sufficient time to make any script changes necessary and to acquire permission for all items that will be included in the film. If some of the permissions are not forthcoming, it is helpful to have enough time to seek permission from alternative sources.

Documentaries have a very different set of demands for clearance. Because a documentary filmmaker generally does not create the content of his shots, he may rely much more heavily on the fair use privilege, which allows the incidental inclusion of copyrighted material. Nonetheless, documentary films should also be subject to a clearance process, and documentary filmmakers should minimize conflict with other rights holders when practical.

2. Coverage Shots

Whenever a scene may involve content that is owned by a third party or that may include content banned in various markets, the filmmaker’s best strategy is to also shoot an alternative version of the scene that omits the questionable material. Scenes involving nudity can be shot with total nudity, then again with highly suggestive costumes. If the director wishes to shoot a scene that includes a billboard in the background, he should also shoot a version of the scene that removes the billboard from the frame.

By shooting coverage shots, the filmmaker captures the footage as he most desires it but also captures sufficient footage so that the film company has choices if faced with clearance problems or censorship. This is far preferable to making the inclusion or exclusion of a scene an all-or-nothing battle. With good coverage footage, any objections can be addressed with relatively inexpensive editing rather than the much more costly reshooting.

3. Location Names

Script clearance reports will identify any overlap with identifiable locations. For example, a fictional locale may coincide with the uncommon name of a real city or region, and the institutions in that location may be unintentionally named in the film. If a script is set in the fictional town of Garonsburg and there happens to be one or two such towns in the United States, then references to Garonsburg High School, Garonsburg General Hospital, and the Garonsburg Police Department may all identify real institutions even though the screenwriter had never heard of them.

The film company does not necessarily have to revise the script to change such conflicting names. The use of an identifiable name will only interfere with the rights of another party if it defames that party or invades that party’s privacy rights. A casual reference that a character attended a high school or was born at a particular hospital is unlikely to defame any person or business. At the same time, however, film companies should try to avoid exclusions to their errors and omissions insurance coverage. Even an unfounded lawsuit can be very expensive. If the fictional location can be changed to a city that has a common name, it is less likely that the fictional name will be identified with one particular city. Within the fictional locale, the choice of institutional names should similarly be reviewed to avoid direct references, unless such references are intentional and important to the film.

4. Background Copyright and Unlicensed Art

For feature films, copyrighted materials should only be used with the express permission of the copyright owner. The claim that a filmmaker has a fair use privilege to show another party’s copyrighted work generally has little support if the work is being used as background or foreground decoration on a feature film or television show. Since there is a ready market for licensing images, the courts are quite reluctant to allow unauthorized copying of copyrighted works. Moreover, copyright owners tend to be very protective of their content, so the likelihood of litigation is high even in those situations in which the merits of the case would favor the filmmaker.

Obvious copyrighted materials may include stock footage, playback footage on television or in films, images that the set designer would use to decorate the set (artwork, posters, computer software screenshots), and pictures on T-shirts, jackets, or other costumes. Less obvious materials include the artwork on product packaging and billboards or public artwork that is visible on the street where one is filming.

There are exceptions to this general approach. For example, if the filmmaker is shooting cars driving on public freeways and incidentally captures the images of billboards, she should generally be protected by fair use, provided that their screen time is brief and they are only in the background. Some copyright owners are much more aggressive than others, however, so there is always a risk of litigation. Even with the background billboards, the errors and omissions insurance coverage may put an exclusion into the coverage for copyrighted images that are not cleared, or licensed.

5. Consumer Products and Identifiable Brands

Consumer products may be subject to strong third-party ownership rights. The names of goods are often trademarked, and their packages often feature copyrighted images. Scenes showing children playing games or characters eating prepackaged food will typically incorporate both copyrighted works and trademarks.

The best strategy is to seek express written permission to depict the product. The second-best strategy is to show the product itself but not its packaging. Once a soda has been poured into a glass, Coca-Cola no longer has any trademark or copyright ownership of the caramel-colored beverage. The actual product will be given far less legal protection and lend itself to much stronger claims of a fair use privilege than the depiction of the packaging.

Tobacco companies do not provide product placement permission, so film companies are strongly encouraged never to show the brands or use brand names in dialogue. Depending on the jurisdiction, the tobacco companies may be barred by legislation or court orders from providing their products to filmmakers in this fashion, and may even be required to defend against such use. Filmmakers should avoid brand references to tobacco products to the greatest extent possible, and use such content only after weighing the risks against the importance of the scene.

Despite these cautionary recommendations, filmmakers may rely on fair use to depict trademarked products or to use the name of such products and services in dialogue. A trademark owner cannot automatically stop a film company from showing its brand name in a scene. If the trademark is said or depicted accurately, the use in the film will not give rise to a successful legal action. Using trademarks without authorization will raise concerns for the insurance company, however, and could make eventual distribution more difficult.

6. Misuse of Products in the Scene

Particular care must be exercised when a trademarked product is used in a dangerous or offensive manner. Manufacturers may feel compelled to take legal action to show their displeasure and send a message to the public that such use is unauthorized, even if there is only a weak legal basis for the action.

For example, in a 2006 episode of the NBC drama Heroes, a character mangled her hand in a garbage disposal on which the In-Sink-Erator brand name could be seen lightly etched into the metal. In-Sink-Erator claimed that the scene “casts the disposer in an unsavory light, irreparably tarnishing the product,” when in fact such a dangerous act would injure any person. NBC ultimately chose to digitally alter the shot to remove the trademark rather than face litigation. While NBC had done nothing legally wrong, and would very probably have won the resulting lawsuit, the costs required to defend the suit would have been higher than the costs of editing the episode prior to rebroadcast or DVD sales.

7. Nonproblematic Trademark References

The clearance review will respond to any trademark referenced in the script. As a result, clearance reports often include a number of “false positives” if the writer has used a brand name in an action paragraph to describe the use of a product that will appear onscreen. Thus, if a character grabs a facial tissue but the script says he grabs for a Kleenex, the clearance report will identify a potential conflict with Kleenex. Depicting the product is not the same as using the brand, so these descriptions in the script do not raise issues for the film.

8. Character Names

The screenplay should use only fictional character names. If the script uses a real, living person’s name but fictionalizes certain elements of the character, that only increases the likelihood that that the person can claim the use is defamatory, since the fictionalization means the use is knowingly wrong. To avoid liability for characters that are not intended to represent living persons, the script must not use a living person’s name, particularly in cases where

• the name is taken from real persons known to the writers, director, producer, or other senior members of the film company;
• the name relates to the locations or situations in the film; or
• the name is sufficiently unique that the person named can reasonably believe the film relates to that person without any other direct relationship.

When a first or last name is used alone, it is much harder to associate it with a particular person than when first and last names are used together. Clearance companies suggest that a full name should not be used unless there are at least five individuals who can quickly be identified as having that name. A quick Internet search is a helpful tool to identify common names.

If real persons’ stories are used, then additional reviews and releases are required. The character names should be authorized, particularly if there is an attempt to depict real persons. Finally, names of performers in any of the unions to which the production company is or will become a signatory should not be used.

This is part of a series of book excerpts from Independent Filmmaking, The Law & Business Guide for Financing, Shooting & Distributing Independent & Digital Films designed as an introduction to the many legal issues involved in the filmmaking process.

…Q: My company is producing a film which has a character that is taken from another very well known film. This new story has absolutely nothing to do with the previously established film, is not in any way a sequel and we never even see the other person, they’re invisible in the mind of a lunatic and it’s questionable whether they exist or not. He just mentions them by name and says that they’ve been friends since he saw that movie. What’s our legal leg to stand on to be able to keep this character by name, in the script, which adds a great deal of humor as he interacts with the character and we can’t see it… or is it better to hedge our bets and make it a completely made up invisible friend?

— FilmIndependent.com| Read The Full Article

Despite the short-term glut in the market, documentaries have become an increasingly important part of the film industry as well as tools of public discourse. Since documentaries only rarely receive national theatrical distribution, audiences do not treat nontheatrical distribution as an aesthetic judgment against the film. They expect to find relevant documentaries through Netflix, Amazon, or PBS. In addition, crafting short-form documentaries is becoming part of the core competence for journalism majors, since the ability to write the story, film the content, edit the narrative, and publish the work reflects the fundamentals of multimedia journalism today.

Since documentary films hover closer to the news media business than narrative theatrical motion pictures do, documentary makers may wish to consider using traditional and nontraditional news publishers to obtain credentials and gain access to some of the content they wish to cover. Having press privileges may be quite helpful for certain documentaries, and producing shorter news pieces alongside the full documentary may serve as a way to promote the eventual release of the film and improve the access for the camera crew.

Finally, it is important to remember that U.S. law provides all speakers and writers, including the press and documentary filmmakers, much greater legal protection to publish material than the protections afforded by most other nations. Particularly if the individuals identified in the documentary are residents of Europe, the Middle East, or Asia, the filmmakers should at least be aware of the significantly different laws regarding standards for defamation, invasion of privacy, content with religious overtones, and content that may be considered political advocacy. The information in this chapter does not extend to the challenges faced by filmmakers producing content that may be deemed scurrilous or denigrating—and may even be banned outright—under the laws or standards of other countries or cultures.

U.S. Documentary Film Clearance

The filmmaker has significantly less need for licenses and approvals to shoot a documentary than to create a feature film. He relies upon the truthfulness and accuracy of the film presented as much as permission for the legal rights to film the locations, people, and other elements that make up the story.

1. Accuracy in Storytelling: Overcoming Defamation

The greatest legal protection for a documentary filmmaker is indeed the truthfulness and accuracy of the film presented. The primary concerns raised come from complaints regarding defamatory presentations or invasions of privacy by individuals or companies. Under U.S. law, a party claiming that she was defamed must prove the falsehood of the information. This is much more protective than a rule establishing that truth is a defense, because it puts the burden on the plaintiff to prove that the statements are falsehoods. In so many situations, proof of truth or falsity is extremely difficult to establish. Moreover, if the documentary features individuals who are public officials or public figures, then the filmmaker would only be legally liable if he knowingly used false material or was reckless in the choice of material presented. Even if the featured individuals are private figures, the filmmaker would have to be at least negligent in the use of the false material.

Since litigation is expensive, most distributors want to know that they can win any lawsuit without going to trial. Therefore, documentary filmmakers must be able to demonstrate readily that they were not negligent in the making of their film or in its depiction of any persons or companies. This is a higher threshold than the law requires, but it reflects a degree of caution on the part of the distributors not to be caught in expensive and drawn-out legal battles.

To assist in establishing the accuracy of the filmmaking process, the filmmaker should take careful notes regarding all his sources, and record all the statements made by his sources as faithfully as possible. If sources are videotaped or audiotaped, however, the filmmaker should be sure to request permission at the time of each taping. Every statement of fact should be verified to the fullest extent possible. This includes the ages of individuals, their educational backgrounds, their work history, and their relationships with the parties in the documentary.

If one party makes serious allegations against another, the documentary filmmaker will need to investigate and corroborate those allegations. Often, the lawyers for the distributor will ask for evidence of corroboration, just as they would expect it from network news crews. And unlike the nightly news or newspapers, documentary filmmakers are assumed to have had sufficient time to investigate leads and corroborate information. For example, if a filmmaker is given a story about dangerous working conditions at a slaughterhouse, he should find out enough about the source to know if the person was recently denied employment at that plant, fired from that plant, or otherwise had a personal grudge that could color the accuracy of the complaints. This does not make the information inaccurate, but it does highlight the need for corroboration by multiple sources. The whistle-blower may very well have been part of the misconduct before deciding to tell his story, and his motivations and behavior must be carefully investigated to show that the filmmaker has taken reasonable care in researching the story.

By maintaining logs, writing down the sources of leads, capturing interviews on tape and retaining those tapes, and confirming times, dates, and locations of all the major events, the filmmaker can show he has taken appropriate care in researching the story and presenting each detail so that there can be no claim of defamation.

2. Avoiding Invasions of Privacy

Perhaps nowhere does the law protecting the rights of the filmmaker differ more greatly from the industry practice than in the area of invasion of privacy. Under the law, if the information is newsworthy or of public interest, then there can be no invasion of privacy for accurately depicting the story. Minors may be afforded slightly greater protection, but as long as information is public and of public concern, the news reporter and documentary filmmaker are free to use that information. Despite the law, by practice, some distributors demand a signed release proving permission from every person depicted on the screen. Documentary filmmakers must balance the need for documentation and caution with the need to capture the footage necessary to tell their story.

In most states, the laws include (1) false light, (2) publicity rights, (3) intrusion into seclusion, and (4) publicity given to matters of private concern. Statements which put persons into a false light are legally very similar to defamatory statements. The false statements need not be as contemptuous as those required for defamation, but the statements must still highly offend an ordinary person. In some states, the rights of publicity are also included as a form of privacy, but publicity rights have increasingly been treated separately as a commercial interest and are discussed elsewhere throughout the book.

Protections again intrusion into seclusion primarily protect against physical intrusion, such as trespassing and planting hidden cameras or microphones in the home of a subject. The use of a high-powered lens used to view through windows might qualify in some jurisdictions, and voyeurs’ use of electronic equipment to see under women’s skirts or peek into bathroom stalls has extended notions of physical intrusion into public venues. These are obvious invasions of personal space, and such offensive techniques simply should never be used.

The most important and challenging privacy consideration for documentary filmmakers is the protection against publicizing matters of only private concern. A filmmaker should not publicize a private fact if that information is not of legitimate public concern and the publication of that fact would be deemed highly offensive to the ordinary person.

There is little clarity regarding the legal point at which a matter becomes a matter of public concern. Criminal activity is generally considered public, and almost any activity by elected officials and entertainers is fair game. Stories that disclose misconduct or highlight important matters of public policy are all likely to qualify as being of legitimate public concern. On the other hand, a newspaper’s casual reference to a student-body officer’s previous sex change operation was deemed not a matter of public concern since it was unrelated to the news story.

Similarly, if a 12-year-old is competing in a spelling bee not open to the public, such a private endeavor, despite the inherent drama, does not become a matter of public concern. On the other hand, if the spelling bee is a public event that anyone can attend, then there can be little claim that taping the competition itself violates the privacy of the participants. This would not, however, extend to the private areas of the competition, such as the green room or the rooms in which the students were waiting along with their parents. A filmmaker does not get to publicize a personal story merely because it makes for good drama.

Fortunately, public concern is not the only test. For the private facts disclosed to be actionable, they also must be highly offensive to a reasonable person, not merely to the particular person who was the subject of the documentary footage. Graphic film footage of accident victims may fall into this category, if the accident was not a matter of public concern and the victims’ bloody bodies, personal agony, and vulnerable state were such that a reasonable person would find the broadcast highly offensive. If the rescue is newsworthy, however, then the filmmaker has much greater leeway.

Simply put, filmmakers should pay attention to the privacy rights of the people in their documentaries, being careful to ensure that if individuals depicted have not consented to be in the documentary, they are involved in matters of public concern or their depictions are not highly offensive.

3. Using Consent Agreements to Acquire Rights

Since privacy laws are so ambiguous, the overwhelming practice is to seek permission to film individuals or at least to inform them that filming will be taking place. An actual permission agreement is the most effective tool available to the filmmaker and distributor to eliminate the potential for lawsuits. If the distributor can remind the offended individual that she signed a release, most often she will drop her objections.

Amazingly, most people will sign such releases.

The release used can be very vague or extremely detailed. The release used by the makers of the mock-documentary Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan was very specific. In this highly controversial film, individuals who were unaware that the movie was a parody were included in scenes that were turned into grotesque situations. The release they signed gave the film company clear and unambiguous rights and has thus far withstood a number of legal challenges from participants who objected to being the unwitting butt of star Sacha Baron Cohen’s jokes:

The Participant agrees to be filmed and audiotaped by the Producer for a documentary-style film (the “Film”). It is understood that the Producer hopes to reach a young adult audience by using entertaining content and formats.

The Participant agrees that any rights that the Participant may have in the Film or the Participants contribution to the Film are hereby assigned to the Producer, and that the Producer shall be exclusively entitled to use, or to assign or license to others the right to use, the Film and any recorded material that includes the Participant without restriction in any media throughout the universe in perpetuity and without liability to the Participant, and the Participant hereby grants any consents required for those purposes. The Participant also agrees to allow the Producer, and any of its assignees or licensees, to use the Participant’s contribution, photograph, film footage, and biographical material in connection not only with the Film, but also in any advertising, marketing, or publicity for the Film and in connection with any ancillary products associated with the Film.
…
4. The Participant specifically, but without limitation waives and agrees not to bring at any time in the future, any claims against the Producer or against any of its assignees or licensees, or anyone associated with the Film, that includes assertions of (a) infringement of rights of publicity or misappropriation (such as any allegedly improper or unauthorized use of the Participant’s name or likeness or image) . . . (d) intrusion (such as any allegedly offensive behavior or questioning or any invasion of privacy), (e) false light (such as any allegedly false or misleading portrayal of Participant), (f) infliction of emotional distress (whether allegedly intentional or negligent), . . . (k) defamation (such as allegedly false statements made on the Film). . . .

The Borat film producers were accused of burying the waivers in voluminous boilerplate, including much less likely defenses to claims for an “act of God” and damages from “terrorism or war,” but only those two waivers were unrelated to the crass conduct Sacha Baron Cohen had planned for the unwitting participants in the film. Although the original waiver paragraph used on Borat included waivers for items not listed above, this slightly shortened list is a useful and appropriate example of the waivers that can be used by documentary filmmakers.

This is part of a series of book excerpts from Independent Filmmaking, The Law & Business Guide for Financing, Shooting & Distributing Independent & Digital Films designed as an introduction to the many legal issues involved in the filmmaking process.